Donald W. Pagos
Jeffrey A. Modisett
Arthur Thaddeus Perry
Michigan City, Indiana
ATTORNEYS FOR APPELLEE
Attorney General of Indiana
Deputy Attorney General
Donald W. Pagos
Jeffrey A. Modisett
Arthur Thaddeus Perry
for felony murder. In this direct appeal Ewing contends that (1) he cannot be convicted of
murder because the victim died after being removed from a ventilator; (2) the trial court erred
by admitting gruesome crime scene photographs and videotape; and (3) he was denied a
fair and impartial jury because the pool of prospective jurors consisted exclusively of people
over the age of fifty. We affirm the trial court.
time, the detectives departed for Michigan City, but soon received word from Chicago police
that Ewing had changed his mind. They returned to Chicago where Ewing, after being
advised of and waiving his Miranda rights, gave a statement.
Ewing told the detectives that he had traveled to Michigan City to secur[e] a guy while he [sold] drugs in a housing project there. Ewing grew tired of waiting for a ride back to Chicago, so he left the project and started walking. He soon found the gas station where Hyatte was working. Ewing observed that Hyatte was the only person inside the station and that a car was parked outside. After some customer traffic subsided, Ewing saw Hyatte counting money at the register, entered the store, pulled out a knife and demanded the money and keys to the car. When Hyatte refused, Ewing struck him with the knife, took the money and keys, and left.
Hyatte died eleven days later after being removed from a mechanical ventilator. Ewing was initially charged with robbery as a Class A felony but the charges were later amended to include a felony murder count. The forensic pathologist who performed the autopsy testified at trial that the cause of death was brain death. The jury convicted Ewing of both counts. The trial court merged the convictions and sentenced Ewing to sixty-five years for felony murder.
the State contends that withdrawal of support in these circumstances was not an intervening
cause of death. After hearing all the evidence and being instructed on the applicable law, the
jury found Ewing guilty of felony murder. There is sufficient evidence to support its verdict
on both theories.
Ewing's claim is essentially an attack on the sufficiency of the evidence, which is reviewed under well-settled principles. We do not reweigh evidence or assess the credibility of witnesses. Rather, we look to the evidence and reasonable inferences drawn therefrom that support the verdict and will affirm the conviction if there is probative evidence from which a reasonable jury could have found the defendant guilty beyond a reasonable doubt. Taylor v. State, 681 N.E.2d 1105, 1110 (Ind. 1997).
As for the claim that Hyatte was alive at the point of withdrawal from life support, the jury was instructed on the definition of death that appears at Indiana Code § 1-1-4-3, which provides in relevant part:
(a) Only an individual who has sustained either:
(1) irreversible cessation of circulatory and respiratory functions; or
(2) irreversible cessation of all functions of the entire brain, including the brain stem;
is dead. A determination of death must be made in accordance with accepted medical standards.
Dr. Rade Pejic, a surgeon, testified that he treated Hyatte shortly after his arrival in the emergency room. Hyatte had sustained a major laceration of the left femoral arteries which caused a massive amount of blood loss. As a matter of fact, he was in full cardiac arrest . . . . He testified that Hyatte was being coded for more than a half an hour, maybe forty- five minutes in the ER before they took him to surgery. Hyatte received approximately
twenty pints of blood _ approximately three times the normal blood volume for an individual
his size _ while in the emergency room. Hyatte then spent two or two and a half hours in
surgery during which Pejic repaired the wound and stopped the bleeding. In the next few
days Pejic ran two electroencephalograms that indicated a very significant derangement of
his brain cell . . . function. Eleven days after Hyatte's admission to the hospital, Pejic
performed an angiogram to determine if there was any blood flow to the brain. He
concluded that Hyatte had no blood flow to his brain whatsoever which told everybody that
he had irreversible brain death since he had no blood supply to his brain for approximately
eleven days. He observed that [w]e gave his body basically every possible -- medical
surgical opportunity to see if there is any possible hope of him coming back to life in lay
terms, and after numerous consultations with the neurologist, the neurosurgeons, the medical
doctors, it was obvious that this patient was, in lay sense, brain dead.
Dr. Dean Hawley, a forensic pathologist, performed an autopsy on Hyatte and also testified at trial. He opined that by the time the openings in the arteries were repaired in surgery, Hyatte's brain had already died from lack of blood flow as a consequence of hemorrhagic shock. . . . Following hemorrhagic shock, his brain was lost, but his heart and lungs remained viable on life support . . . . His brain then began to degenerate to an almost completely liquified state. Hawley testified that Hyatte died as the result of anoxic encephalopathy, which is brain death, due to a stab wound to his left groin. When asked to explain anoxic encephalopathy, he offered the following summary:
Mr. Hyatte was stabbed. At the time of his stabbing, he began to bleed profusely. He
was bleeding so much that his heart was not able to pump a vital supply of oxygen to
his brain and his brain died. At that point, he was stabilized from bleeding and his
heart and lungs were resuscitated. He was placed on mechanical ventilation in a true
dead state. In other words, in Indiana there is a legal definition for death and that
legal definition includes brain death. He was maintained dead on a ventilator with
life support for a period of several days and then life support was discontinued . . . .
Based on the testimony of Drs. Pejic and Hawley, the jury had ample evidence to conclude that Hyatte was brain dead at the time the ventilator was disconnected.
The same evidence supports the conclusion that withdrawal was not an intervening cause of death, even if some minimal brain function remained. [I]t is the rule of homicide law that a defendant is responsible for the death of the decedent if the injuries inflicted contribute either mediately or immediately to the death. Swafford v. State, 421 N.E.2d 596, 602 (Ind. 1981). In order for an intervening cause to break the chain of criminal responsibility, it must be so extraordinary that it would be unfair to hold the appellant responsible for the actual result. Sims v. State, 466 N.E.2d 24, 26 (Ind. 1984).
Ewing concedes in his reply brief that recent Court of Appeals' opinions hold that the removal of life support is not an intervening cause that breaks the connection between the defendant's actions and the victim's death. See, e.g., Spencer v. State, 660 N.E.2d 359, 360- 61 (Ind. Ct. App. 1996). However, he argues that these cases are bad law as they stand for the proposition that an unfettered decision to euthanise can lead to a murder conviction. He contends that a defendant should not be subject to a murder charge when a victim wants to end his or her life because of impairment of a bodily function or when life support is removed because the victim's insurance ran out. That may be true, but neither of these
circumstances is present here. Where life support is removed because, as here, Hyatte had
suffered irreversible cessation of all functions of his entire brain, see Ind. Code § 1-1-4-3(a),
the removal of life support is not an intervening cause that relieves the killer from the
inexorable consequences of his or her actions. There is sufficient evidence to support the
felony murder conviction.
Duren v. Missouri, 439 U.S. 357, 364 (1979). As a threshold matter we must address
whether persons aged eighteen to fifty are a distinctive group in the community. Ewing
cites no authority for the proposition that people within a certain age range are a distinctive
group for purposes of the fair cross-section requirement. This Court has explicitly rejected
the contention that persons between eighteen and twenty four years old are a distinctive
group under Duren. See Thomas v. State, 443 N.E.2d 1197, 1199 (Ind. 1983); Tawney v.
State, 439 N.E.2d 582, 585 (Ind. 1982); Grassmyer v. State, 429 N.E.2d 248, 251 (Ind.
We observed in Grassmyer that there was no showing that this age group is a group distinct from the rest of society in a significant way, having interests which cannot be adequately represented by other members of the trial panel. Regarding the claim that the group is distinctive in the economic sense, there is likewise no showing. 429 N.E.2d at 251; see also Moore v. State, 427 N.E.2d 1135, 1139 (Ind. Ct. App. 1982) (finding no showing whatever that the alleged group of 18 to 24 year olds possesses the common thread necessary so that their relative exclusion prevented the jury from the opportunity to represent a reasonable cross section of the community). Courts in other jurisdictions agree. As the Seventh Circuit recently observed, every federal circuit that has considered the issue has concluded that young persons do not constitute a distinctive group under Duren. See Johnson v. McCaughtry, 92 F.3d 585, 593 (7th Cir. 1996) (collecting cases).
Not only has Ewing failed to establish that eighteen to fifty year olds are a
distinctive group, he has also made no showing of systematic exclusion. Although defense
counsel suggested that there is a problem of how the jury commissioners are gathering the
prospective jurors and how they are making the quarterly panels, the trial court observed
that the jurors were selected from registered voters lists and we have had panels where the
people between the ages of eighteen and forty-five were more prevalent than the older
people, so I can't really say that what they are doing is improper. Ewing has not
demonstrated a violation of the fair cross-section requirement.
SHEPARD, C.J., and DICKSON and SULLIVAN, JJ., concur.
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